L. Appeals to the Supreme Court of Canada

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 582-583

582 CHILD SU PPORT GUIDELINES IN CA NADA, 2012

K. FRESH EVIDENCE57

e following principles govern the admission of fresh evidence before an appellate court:

(i) the evidence should generally not be admitted if by due diligence it could have

been adduced at trial;

(ii) the evidence must be relevant in the sense that it bears upon a decisive or

potentially decisive issue at the tri al;

(iii) the evidence must be credible in the sense that it was reasonably capable of belief;

and

(iv) the evidence must be such that if believed, it could reasonably be expec ted to have

af‌fected the result at tria l.

However, an appellate court may take account of a change of circumstances since the

making of the order where a failure to do so would result in long-term injustice58 or in an

order that would nece ssitate variation on a f resh application.59 Evidence of a loss of employ-

ment after the delivery of the tria l judgment may be admitted on appeal and the amou nt of

child support may be varied by the appellate cour t to ref‌lect these changed circumstances. 60

In the absence of an application to admit new evidence by way of af‌f‌idavit on an appeal, the

submissions of counsel are insu f‌f‌icient to establish a material change of circ umstances.61

e tender of computer generated tables, which are merely mathematical tools enabling

the court to undertake complicated calculations, does not of‌fend the “fresh evidence” rule

that customarily applies to appea ls.62

A judge is not functus of‌f‌icio where a formal order ref‌lecting her reasons for judgment

has not been entered. Where the Crown seeks reconsideration of a prior judicial remis-

sion of arrears based on the f‌inding that the husband was unaware of his wife’s receipt of

social assistance, the Crown is not exempted from meeting the requirements of the “fresh

evidence rule” simply because the court could have unilaterally relied upon the Provincial

Court order on f‌ile to which neither party made reference in the original application. e

fresh evidence rule is not rendered inapplicable because previously untendered evidence

was available on the court f‌i le.63

L. APPEALS TO THE SUPREME COURT OF CANADA

Section 18 of the Divorce Act, 1968 64 specif‌ically provided for appeals to t he Supreme Court

of Canada. No similar provi sion is included in the current Divorce Act. Accordingly, appeals

to the Supreme Court of Canada now fall subject to the releva nt provisions of the Supreme

Court Act .65

57 See, generally, Julien D. Payne, Payne o n Divorce, 4th ed. (Scarborough, ON: Ca rswell, 1996) at 495–97.

58 Jens v. Jens, 2008 BCAC 392, [2008] B.C.J. No. 1886.

59 LeBlanc v. LeBlanc (1993), 48 R.F.L. (3d) 457 (Man. C.A.); Williams v. Williams, [1999] N.J. No. 254 (C.A.).

60 Forbes v. Forbes (1997), 33 R.F.L. (4th) 251 (B.C.C.A.).

61 Giles v. Villeneuve , [1998] O.J. No. 4492 (Gen. Div.).

62 Meuser v. Meuser, [1998] B.C.J. No. 2808 (C.A.).

63 Williams v. Williams, [2001] A.J. No. 1558 (Q.B.).

64 S.C. 1967–68, c. 24 .

65 R.S.C. 1985, c. S-26. Compare Pelech v. Pelech, [1987] 1 S.C.R. 801.